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Letters to the Editor

• PO Box 36626, Menlo Park 0102

• Docex 82, Pretoria

• E-mail: derebus@derebus.org.za

• Fax (012) 362 0969

Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

Legal Practice Bill – beware

The word ‘congratulations’ appears on the front cover of the April 2013 edition of De Rebus in relation to the Legal Practice Bill (B20 of 2012). It should have been replaced with the word ‘beware’.

Your article on the public hearings on the Bill clearly contains serious warnings (2013 (Apr) DR 22). There are so many negative concerns about the proposed legislation that attorneys (and advocates) should oppose it in its present form, in a convincing manner.

Colin Mostert, attorney, Welkom

Responsibilities of CAs

I have been following the recent debate in De Rebus about the exploitation of candidate attorneys (CAs) and wish to respond to the letter ‘CAs – lifeblood of firms’ in the May 2013 issue (2013 (May) DR 6).

First, one cannot deny that exploitation occurs on a daily basis – not just in the legal profession, but in all jobs and professions, both in the public and private sectors. One has to be careful to generalise, however.

I served articles with a principal who did not play a passive role in my legal training and who prepared me for practice. Tutoring is one thing, acquiring the disciplines required is quite another – this you have to do on your own.

I was given the necessary instruction to point me in the right direction; however, I was not ‘spoon fed’. It was made clear to me at the outset that acquiring information is achieved by research, research and more research. This is necessary to obtain the basic disciplines required to become a successful attorney.

As a CA, I took it upon myself to serve documents, often having to walk where I needed to be as I did not have the use of a vehicle. This I did in order to familiarise myself with the necessary procedures, both in criminal and civil matters. I drafted my own documents and still do so. One wonders why it is seen as incomprehensible for a CA to be expected to draft and type.

As far as responsibilities are concerned, it is important for CAs to understand that being an attorney means carrying huge responsibilities on their shoulders for the rest of their professional life. Being asked to get to grips with this kind of responsibility early on is essential. CAs need to be shown that being an attorney is not about the glitz and glamour that is often displayed on television.

Regarding remuneration, CAs seem to miss the point that in the legal profession, and the private sector in particular, salaries are determined by the fees generated. A CA cannot expect to earn R 10 000 per month if he or she only generates fees of R 2 000 per month. CAs seem to lose sight of how their principals generate income.

Lastly, what is difficult to comprehend is how the writer of the letter referred to above expects the relevant law society to act without him or her being willing to commit to his or her version. Should the law society and the principal carry all the responsibility, while the CA is not willing to accept responsibility for what he or she is about to do? Certainly not. The writer would do well to remember that the law society cannot know what is going on inside every law firm – that is why it requires information from the complainant in the matter.

Werner Gillespie, attorney, Ladysmith

• Over the past few months De Rebus has received a number of letters on the topic of the relationship between CAs and principals. Please note that correspondence in this matter is now closed. The debate on this topic is, however, expected to be taken further during the Legal Practice Bill (B20 of 2012) process – Editor.

Transformation and merit in black and white

Advocate Izak Smuts recently resigned from the Judicial Service Commission (JSC) due to differing views on ‘the constitutional values, the constitutional role and duty of the commission’.

Mr Smuts had served on the JSC since September 2009, representing the advocates’ profession.

In a statement following his resignation, he stated: ‘Regrettably, the track record of the commission during the time in which I have served on it has been disturbing. … The image of the commission has been tarnished in consequence.’

He further stated: ‘The commission … has left a trail of wasted forensic talent in its wake, which would be remarkable in a society rich in human resources, and is unintelligible in a society such as ours in which … such resources are scarce’ (I Smuts ‘Why I’m resigning from the JSC – Izak Smuts’ Politicsweb 12-4-2013) (www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=369581&sn=Detail, acces­sed 31-5-2013)).

According to Mr Smuts, this forensic talent lies in a number of advocates who have been rejected for judicial posts by the JSC. I note that most of those mentioned by Mr Smuts call themselves white and are male.

This suggests that this rare forensic legal talent cannot lie with anyone else, but Mr Smuts’ fellow white (as they prefer to call themselves) male colleagues. In fact, this suggests that all the judges who have been appointed while he was serving on the JSC lack this forensic legal talent.

There is no doubt that we need transformation in the judiciary, but does this transformation mean race or gender transformation?

Deputy Judge President of the South Gauteng High Court, Judge Phineas Mojapelo, has stated that a comparison of the legal profession with the judiciary shows that racial transformation of the judiciary has gone almost 100% faster than that of the general legal profession.

As of 31 May 2012, out of the 237 judges, 34% were white and 66% were black (2012 (Dec) DR 54). This shows that the JSC has done tremendous work in pushing forward racial transformation.

Gender transformation, on the other hand, paints a somewhat bleak picture. Out of the 237 judges, almost 72% were male.

This suggests that we should rather focus on gender transformation of the judiciary and not on racial transformation. I am in no way suggesting that female judges, black and white, should be appointed to the Bench merely to improve statistics and I am sure that no female judge would be satisfied with her appointment if this was not based on merit, but was an effort to balance statistics.

One would then have to agree with Mr Smuts’ reported assertion that: ‘If you adopt the approach that transformation is simply a rote replacement of white male judges with black male and female judges, but you don’t examine whether those you appoint embrace the constitutional values …, then on the race and gender model you may be transforming the judiciary, but in reality you may be posing far greater dangers to our new society’ (Sapa ‘Smuts finds idea of merit “offensive”’ timeslive.co.za 21-4-2013 (www.timeslive.co.za/local/2013/04/21/smuts-finds-idea-of-merit-offensive, accessed 31-5-2013)).

If we adopt this narrow approach to the transformation of the judiciary, our legal system is a danger to itself. We should be cautious of political individuals who wish to influence and undermine the independence and impartiality of our courts in the name of racial transformation.

Chief Justice Mogoeng Mogoeng is reported as saying that, when it comes to the appointment of judges, it is not about merit only: ‘Merit does count, but it is not all about merit. Transformation is just as important’ (C du Plessis ‘Appointing judges not about merit alone – Mogoeng’ City Press 9-4-2013 (www.citypress.co.za/politics/ap­pointing-judges-not-about-merit-alone-mogoeng/, accessed 10-6-2013)).

Section 174(2) of the Constitution provides that the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.

In his recent article, ‘The JSC must redefine merit to advance judicial transformation’, Professor Pierre de Vos argues that s 174(2) of the Constitution recognises that an elite all-white and all-male judiciary would not have the broader skills to hand down legitimate, well-informed judgments advancing and protecting the interests of the vulnerable and marginalised in society (http://constitutionallyspeaking.co.za/the-jsc-must-redefine-merit-to-advance-judicial-transformation/, accessed 31-5-2013).

In my view, the JSC should focus on recommending individuals who are committed to the values of our Constitution, who possess the highest degree of legal skills, with the necessary experience and ultimate independence and impartiality and, of course, individuals who will advance and protect the interests of the most vulnerable and marginalised in society. Transformation, whether race or gender based, should in no way supersede merit.

Mzukisi Ndabeni, attorney, Boksburg.

Free for all?

I am writing to express my contempt for the legal profession in this country.

The letter ‘Raise the bar’ by Mondli Myeni in 2013 (May) DR 4 has encouraged me to write this letter.

It is disgusting to see people who cannot talk and write proper English practising as attorneys and advocates, while others are employed in the public sector, wasting taxpayers’ money. While this may sound controversial, it must be said.

The reason why I doubt we will not see another George Bizos or Kessie Naidu in this country is precisely because of the drop in standards in the legal profession. Ever since 1998, we have seen an oversaturation of legal graduates. Should this continue, we might as well start selling law degrees.

I come from a poor background. English is my second language, as it is for many – both black and white – in this country. Yet, I can speak and write English well. Why must others be allowed to study and then be allowed to pass when they are unworthy of this? The tendency of our universities to allow anyone to study and simply passing others must stop. Otherwise, we will see attorneys unable to secure employment in the legal profession.

The aim of studying is to find a job easily, not to stay at home with your law degree and admission certificate hanging on the wall.

Siya Mkhize, attorney, Durban

Thoughts on the LLB degree

I am a practising attorney, who began studying towards an LLB degree in 1999. As a former four-year undergraduate student, I feel that the LLB degree sufficiently teaches a person the law, just as the MBChB degree is sufficient to teach a person to practise medicine.

The problem in this profession is that no business and writing skills are taught. We have no exposure to economics, finance and business management. This is a limitation for attorneys, as we run businesses. The LLB is more suitable for those wishing to become advocates.

I also believe that tertiary institutions must raise the entry requirements for admission to study towards an LLB degree and that the reason there are so many lawyers is partly due to transformation after 1994. This led to the new LLB degree and the requirements for admission were lowered.

In my opinion, many who did not get accepted into their first choice of degree at university settled for the LLB.

Further, universities were, in my view, churning out law graduates in order to obtain funding from government.

Therefore, the system is to be blamed. There was poor planning and we are now suffering as a result of the repercussions.

A good solution is to set out proper guidelines and enforce rules for principals to follow in training candidate attorneys.

A diligent lawyer is one who can identify facts, use the rules properly, have the confidence to appear in court, draft proper pleadings, write coherent letters and negotiate effectively. Of course, being capable of managing money is also important. These skills must be taught to candidate attorneys.

The practical legal training course should also be upgraded to teach candidates the necessary skills.

If the controlling body cannot do anything to better this profession, then who can?

I am also a commercial aeroplane pilot, which requires compliance with high standards. The pass mark for aviation theory is 75% and pilots have to continuously undergo training to keep proficient and up to date. Our skills are thus kept in check.

The same should apply to lawyers. A higher standard should be enforced, so that the profession remains of a high calibre.

Proper planning is therefore required in order to reform this great profession of lawyers. 

Moosa Vardalia, attorney,
Johannesburg

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